'Morality' May Not Be Enough to Justify the EU Seal Products Ban: Animal Welfare Meets International Trade Law

Under recent European Union regulations promulgated with overwhelming popular support, seal products may neither be placed on the European market internally nor imported into the EU. As a result Canada, Norway, and Iceland – all states that deal in seal products – filed complaints with the World Trade Organization, contending that the EU’s actions were contrary to its commitments to free trade under international trade agreements. Many animal advocates hope this will be the first case to establish that the General Exception found in Article XX(a) of the General Agreement for Tariffs and Trade (GATT), for measures that are “necessary to protect public morals,” can be used to justify animal welfare laws that otherwise adversely affect trade. Unfortunately, this hope may be misplaced, not because such measures don’t fit within Article XX(a), but rather because of the specific manner in which the EU chose to implement its regulatory ban. The regulations implementing the EU seal products ban include exclusions and exceptions that fail to distinguish between humane and inhumane practices, and which nevertheless permit some seal products to be placed on the market in the EU, or – perhaps even more significantly – to transit the EU to other markets thereby protecting the business of European brokers and forwarders. While much of the commentary to-date has focused on the regulatory exception for traditional seal hunts conducted by Inuits and other indigenous peoples, it is these other additional exceptions and exclusions that were added to the European Commission’s initial proposal during the political approval process that may well prove to be more problematic in any decision by the WTO Dispute Settlement Body. Ironically, the initial scheme not only better served animal welfare interests but, given the DSB’s emphasis upon a narrow textual interpretation of the WTO agreements, the tighter initial scheme would also have been more likely meet the requirements of Article XX.While animal welfare polices, in appropriate cases, certainly should fit under Article XX(a) General Exception for measures “necessary to protect public morals,” the details of this particular regulatory scheme do not comport with either the “necessity” requirement of the exception, or the requirement to avoid “arbitrary and unjustifiable discrimination” imposed by the chapeau. It may be that the best that can be expected is a decision similar to what occurred with the US environmental measures at issue in Shrimp-Turtle II, that is, a pronouncement that the “public morals” exception might well be useful in an animal welfare context, but that such measures must also respect the rights of exporting States under the WTO Agreements in a manner which this particular regulatory scheme fails to do. The EU will then need to decide whether to essentially ignore the WTO decision, and bear the costs of compensation or retaliation, or – in a manner similar to what ultimately occurred in Shrimp-Turtle or the Australia-Salmon cases, remedy the deficiencies in the current scheme and more fully embrace the animal welfare objective and abandon the various exceptions and gaps in coverage found in the current regulations.

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